Commonwealth v. Villagran

Supreme Judicial Court of Massachusetts, Norfolk

August 29, 2017

COMMONWEALTHv.JONATHAN VILLAGRAN.

Heard: March 7, 2017.

Complaint
received and sworn to in the Quincy Division of the District
Court Department on March 26, 2015. A pretrial motion to
suppress evidence was heard by Diane E. Moriarty, J., and the
cases were tried before Robert P. Ziemian, J.

The
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.

After a
jury trial in the Quincy District Court, the defendant,
Jonathan Villagran, was convicted of carrying a firearm
without a license, G. L. c. 269, § 10 (a.); carrying a
dangerous weapon on school grounds, G. L. c. 269, § 10
(j_); possession of a firearm without a firearm
identification card, G. L. c. 269, § 10 (h); disturbing
a school, G. L. c. 272, § 40; and possession of a class
D substance with intent to distribute, G. L. c. 94C,
32C.[2]
The complaint issued after a police officer, responding to a
report of an unauthorized person on the property of Milton
High School (school), searched the defendant's backpack
and discovered a firearm, money, and marijuana.

Prior
to trial, the defendant filed a motion to suppress statements
and physical evidence seized during the search of his
backpack, arguing that the police officer lacked a
constitutionally permissible basis for the patfrisk and the
subsequent search. A judge of the District Court denied the
motion. The defendant appealed, asserting that the denial of
the motion to suppress violated his rights under the Fourth
Amendment to the United States Constitution and art. 14 of
the Massachusetts Declaration of Rights.[3] He also
challenges the sufficiency of evidence to support the
conviction of disturbing a school.

We
transferred the case to this court on our own motion and take
this opportunity to reaffirm the distinction between the
traditional standard applicable to a police officer's
conduct implicating the Fourth Amendment and the less
stringent standard applicable to a school official who does
the same. When a police officer conducts a patfrisk, the
applicable standard for assessing its constitutionality is
reasonable articulable suspicion, Terryv.
Ohio, 392 U.S. 1, 27 (1968), and when a police officer
conducts a search, the Fourth Amendment requires a warrant
based on probable cause unless the search is justified by
probable cause and an exception to the warrant requirement.
Commonwealthv.Tyree, 455 Mass.
676, 684 (2010). Although the question has not been presented
directly, we previously have assumed that a police
officer's conduct in a school setting is governed by the
traditional Fourth Amendment standard. Commonwealthv.Carey, 407 Mass. 528, 535 n.4 (1990)
(discussing distinction between standard applicable to police
officers and school officials). On the other hand, when a
school official conducts a search, it is constitutionally
permissible under the Fourth Amendment and art. 14 so long as
it is "reasonable[] under all the circumstances."
New Jerseyv.T.L.0., 469 U.S.
325, 341 (1985) (T.L.O.).

Applying
the Terry standard to this case, we conclude that
the police officer lacked reasonable articulable suspicion
that the defendant had committed a crime and that the
circumstances of the encounter with the defendant did not
warrant a reasonable belief that the defendant was armed and
dangerous to the officer or others. Nor was the search
permissible under any exception to the warrant requirement.
Thus, because neither the patfrisk nor the search of the
defendant's backpack was justified on any of these
grounds, the denial of the motion to suppress was error.
Therefore, we vacate his convictions of the firearms and drug
charges. Because the conviction of disturbing a school was
based, at least in part, on his possession of a firearm,
which should have been suppressed, we vacate that conviction
and remand for a new trial.

Discussion.

1.
Motion to suppress.

a.
Standard of review.

"In
reviewing a ruling on a motion to suppress evidence, we
accept the judge's subsidiary findings of fact absent
clear error and leave to the judge the responsibility of
determining the weight and credibility to be given . . .
testimony presented at the motion hearing."
Commonwealthv.Meneus, 476 Mass.
231, 234 (2017), quoting Commonwealthv.Wilson, 441 Mass. 390, 393 (2004) . "A finding
is clearly erroneous if it is not supported by the evidence,
or when the reviewing court, on the entire evidence, is left
with the firm conviction that a mistake has been
committed." Commonwealthv.Hilton, 450 Mass. 173, 178 (2007). "We review
independently the application of constitutional principles to
the facts found." Commonwealthv.Amado, 474 Mass. 147, 151 (2016), quoting
Wilson, supra.

b.
Facts.

In the
written order denying the defendant's motion to suppress,
the judge found the following facts based on the testimony of
two Milton police officers, Sergeant Kristen Murphy and a
detective.[4]

"On March 25, 2015, at approximately 2:00 P.M., [school]
officials observed an unknown individual on the grounds of
the school. Later identified as [the defendant], he entered
the facility and told school officials that he was a student
and needed to get back into the building. He eventually
changed his story stating that he needed to use the restroom,
after presenting an obviously fictitious name to the school
official. The [d]efendant then exited the building, but could
be seen pacing around the school parking lot.

"At this time, the principal and vice principal
approached the [d]efendant and noticed a strong smell of
marijuana. The [d]efendant proceeded to tell them that he was
waiting for a [sixteen] year old girl to meet him at the
school. At this point the principal and vice principal
worried about the surrounding students filling the area and
ushered the [d]efendant into a conference room in the school.

"Sergeant [Murphy] of the Milton Police Department
arrived and smelled an overpowering scent of marijuana on the
defendant. Sergeant [Murphy] was informed that the
[d]efendant had lied about his identity and his reason for
being there, and that the [d]efendant tried to sneak into the
school. Both school and law officials were suspicious of the
[d]efendant's strange demeanor as well as his blatant
lying and reasonably agreed that he may have contraband on
him. Sergeant [Murphy] then conducted a pat-frisk on the
[d]efendant and found marijuana in his sweatshirt, in
addition to a wad of money in the amount of $2, 964.88 in his
pants pocket. After searching the [d]efendant's person
Sergeant [Murphy] pat-frisked the exterior of the backpack,
despite the defendant's objections, and felt a hard
object. Sergeant [Murphy] then opened the bag, as she feared
the hard object may be a weapon. In the bag Sergeant [Murphy]
discovered a bottle of alcohol, another bag of marijuana, a
scale, and a loaded handgun. [Murphy] immediately removed the
gun from the [d]efendant's reach and read him his Miranda
rights. The school was then placed on lockdown. ..."

The
defendant contends, and the Commonwealth concedes, that
portions of these findings, central to the judge's ruling
denying the motion to suppress, were not supported by the
evidence and, thus, are clearly erroneous.[5] See
Hilton, 450 Mass. at 178-180. Specifically, the
evidence does not support the judge's findings that:

(1) At the time of the frisk, Murphy knew the defendant
"entered the facility and told school officials that he
was a student and needed to get back into the building. He
eventually changed his story stating that he needed to use
the restroom, after presenting an obviously fictitious name
to the school official. The [d]efendant exited the building
but could be seen pacing around the school parking lot."

(2) "Sergeant [Murphy] was informed that the [d]efendant
had lied about his identity and his reason for being there,
and that the [d]efendant tried to sneak into the
school."

(3) The sergeant was "suspicious of the
[d]efendant's strange demeanor as well as his blatant
lying and reasonably agreed that he may have contraband on
him."

(4) "Sergeant [Murphy] then opened the bag, as she
feared the hard object may be a weapon."

Instead,
Murphy described in unequivocal terms the extent of her
knowledge of the events that occurred prior to her entry into
the conference room where the defendant had been brought by
school officials. "The call was given out that ... a
male party was trying to gain entry into the high school.
That's what I knew. When I got there [the vice-principal]
told me we have a kid in the conference room, he's not a
student here. Basically, that's what I knew."

In
addition to the findings that survive the clear error
standard, the evidence at the motion to suppress hearing also
established the following. On her arrival, Murphy observed
that the vice-principal, whom she had known for over twenty
years, was "excited" and that both the
vice-principal and the principal appeared to be
"rattled." Once inside the building, the sergeant
and the vice-principal proceeded to the conference room where
the principal was waiting with the defendant, who was seated
at a table. The principal told Murphy, "Something's
wrong. Something's not right with this kid.
Something's not right. He has something on him. I know he
has something on him." The principal did not, however,
explain the basis for his "hunch" that the
defendant had contraband in his possession or express a
concern that the contraband might be a firearm. Murphy did
not inquire further to determine the basis of the
principal's suspicion that the defendant "had
something on him." Nor was Murphy told of the
defendant's interactions with school officials or the
substance of his lies to gain entry into the
school[6] before she commenced the patfrisk that
culminated in the search of the backpack.

c.
Analysis.

The
judge concluded that Murphy conducted a lawful patfrisk of
the defendant's person and his backpack based on
Murphy's "reasonable apprehension of fear, danger
and unknown factors present during the period of [the
d]efendant's interaction with the school and law
officials" and, therefore, all of the evidence seized
from the defendant was admissible. In reaching this
conclusion, the judge expressly relied on the finding that
Murphy was aware of the defendant's "blatant
lies" to gain entry into the school. We consider the
constitutionality of the patfrisk and the search of the
backpack, omitting the clearly erroneous findings related to
Murphy's knowledge of the circumstances of the
defendant's entry into the school but taking ...

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